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Guest Opinion | McDade Report Release Repeated Re-runs? Transparency or Secrecy on Body-camera Videos

Published on Monday, April 4, 2016 | 11:43 am
 
Skip Hickambottom (l) and Dale Gronemeier (r)

Does anyone want repeated re-runs of the bruising battle over release of the Officer of Independent Review (“OIR”) Group Report on the Pasadena Police Department shooting of the unarmed African-American youth Kendrec McDade? If anything should be learned from that contentious experience, it is that the City and the Police Department are better served by prompt release of information on police shootings rather than their suffering a thousand cuts by battling to keep the information bottled up but then ultimately having to yield to public pressure or court orders.

Body Cameras are supposed to serve transparency and public trust

Later this year, Pasadena police officers will begin wearing body cameras while on duty. The cameras will record the daily activities of officers while they interact with the community they serve. The U.S. Department of Justice contributed to the cost of Pasadena’s body worn cameras for the stated purpose of “building trust and transparency between law enforcement and the communities they serve.” In order for the citizenry to be kept fully informed of the activities of Pasadena police officers and to maintain trust in the Department, they must be given access to the videos of the critical incidents recorded by the body cameras – i.e., any incident involving the use of force and any incident concerning which there is a citizen complaint against a police officer. If the public is denied access to the videos of critical incidents, the body cameras will not be serving their intended trust-building and transparency purposes.

The Public Records Act “investigative records” conundrum

In the absence of being designated law enforcement “investigative records,” body camera videos would be a “public record” under the California Public Records Act and could be obtained within 10 days by the press or the public filing a public records act request. If they are designated as “investigative records,” they are exempt from disclosure under the Public Records Act.  Keeping videos confidential prior to the completion of both criminal and administrative investigations is a legitimate law enforcement interest for the same reason that witness statements and other evidence should be kept confidential during investigations – i.e. witnesses, including suspects and victims, should give their pure recollection without it being contaminated by other witnesses or evidence. So how does the public interest in transparency and trust get balanced against that legitimate law enforcement interest?

Some cities are deeming camera videos “investigative records” as a way to defeat the purposes of transparency and public trust and to avoid releasing dash and body camera videos forever, even after investigations are over. Some cities take the position that public release of dash and body camera video is subject to the discretion of the Police Chief because, even if a police department deems a body camera video an exempt investigative record, the Police Chief can still waive the exemption and release the video.

But even leaving the decision to release body camera videos to the discretion of the Police Chief does not build trust and transparency between law enforcement and the communities they serve. As this community painfully learned in the aftermath of the tragic shooting of Kendrec McDade, withholding information from the public about critical police incidents destroys trust and transparency between law enforcement and the community. The subject of the investigative records exemption in the McDade case was not a video. It was the Report of the OIR Group, the Independent Police Auditors hired by the City to audit the Department’s criminal and administrative investigations of the McDade shooting. The City’s decision to withhold the Report for over two years before it waived the investigative records exemption (and released a redacted version of the Report) simply prolonged the acrimonious and divisive public debate over the incident. When Pasadena released the LeRoy Barnes OIR Group Report shortly after the completion of the investigations, the community quickly addressed it and moved on without the acrimony and divisiveness when the McDade Report was so slow in coming out. Chicago Mayor Rahm Emanuel’s decision to withhold the video of the Laquan Jackson shooting for 13 months had a similar result to the McDade delay.

Balancing the interests by disclosure after sufficient time for the investigations completion

There is a better way. Assemblyman Bill Quirk (D-Hayward) has introduced legislation that would not leave the decision to the discretion of the Police Chief but rather would allow body camera videos of critical incidents to be released within 60 days. 60 days should be sufficient time to complete all investigations. (The McDade administrative investigation was not done until nearly a year after the shooting, but there seems to be no reason that it had to be delayed that long.) The 60 day period could be tweaked if it could be demonstrated that it is not reasonable for all investigations to be completed within 60 days.

We urge Pasadena’s decisionmakers to adopt a policy that videos from police cameras of critical incidents are investigative records for a specified period of time sufficient to complete the criminal and administrative investigations – probably for 60 days. After that period, the videos should be deemed to no longer be investigative records but rather be accessible to the press and public pursuant to a Public Records Act Request.

If the Pasadena Police Department adopts a progressive and thoughtful policy for body worn cameras, which includes a guarantee of eventual public access to videos of critical incidents, it will be a “win-win” for the Department and the community. The alternative is a road no one should want – i.e., continuous re-runs of battles like the long battle over release of the McDade Report which only increase the public distrust of the City and the Police Department by always putting the City and the police on the side against transparency.

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys who have represented McDade’s mother and Pasadena Area police oversight activists in getting release of the OIR Report on the McDade shooting.

 

 

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